0120162725
05-17-2018
Rina F.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rina F.,1
Complainant,
v.
Michael R. Pompeo,
Secretary,
Department of State,
Agency.
Appeal No. 0120162725
Agency No. DOS-0362-15
DECISION
On August 26, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 29, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contractor at the Agency's facility in Phoenix, Arizona. Complainant served as a Customer Service Representative. As a condition of employment as a contractor within the Agency, Complainant was subject to a Contractor Review Panel preliminary fitness determination. On May 4, 2015, the preliminary fitness determination found that Complainant was not eligible for employment with the Agency through the Contracting Company. This determination was upheld on June 17, 2015. As a result, she was determined to be ineligible to work for the Agency through the Contracting Company and her employment at the Agency was terminated.
On November 25, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (bipolar and Post Traumatic Stress Disorder or PTSD) when, she received a suitability determination finding her ineligible for employment by the Agency on May 4, 2015 which was upheld on June 17, 2015.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed. Complainant asserted that she was hired by the Contracting Company in December of 2013. In March 2014, Complainant was sent to the Agency for an interview and review of her case for further determination of her eligibility to work for the Contracting Company at the Agency. During the interview, Complainant's credit history and credit report were discussed. From March 2014 through May 2015, Complainant was not contacted by the Agency until she was informed that her security clearance had been denied and that she would be terminated from her contractor position with the Agency. During the 18 months of her employment, Complainant indicated that she was not contacted by the Agency regarding her debts nor was she informed that there was anything she could have done to alleviate those concerns regarding her debts. She felt like she was in the dark about the situation while her coworkers had constant communication with their interviewers. She claimed that one coworker had double the amount of debt as Complainant but she was told by the person that interviewed her to bring the debt by a certain amount to obtain her clearance. Therefore, Complainant felt that others were provided an opportunity to bring their debt down to a level that was acceptable while she was not given a similar opportunity.
Complainant also alleged that other employees have been provided with accommodations to help them cope with PTSD. Complainant indicated that in December 2015, she informed the Agency that she had been diagnosed with her conditions. She asserted that she was released from employment without having her medical conditions being evaluated by the appropriate Agency staff. She claims that she was not given a reason the Agency did not review her medical files. She was just released from employment from the Agency. She had been working at the Agency for over a year and her medical condition had improved, yet she was released from employment. She believed that the removal from employment was due to her medical condition and that she was denied the same opportunities as her coworkers who could pay down their debt and were not removed.
The Agency asked that the Commission affirm its final decision finding no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its action. The Chair of the Contractor Review Panel (Chair, unknown medical condition) averred that she has been an adjudicator since August 2013, and was involved in Complainant's case. In her position, she participated in the Contractor Review Panel process for contractor cases in which she would recommend fitness determinations. In findings of unfavorable fitness determinations, she prepares the Preliminary Fitness Determination memorandum and the List of Reasons. The Chair did not know Complainant. She only knew Complainant as an applicant for a contractor position with the Contracting Company for employment with the Agency. She determined that Complainant was a "Moderate Risk Public Trust." The Chair found Complainant not suitable for employment based on financial considerations particularly Complainant's unpaid debts and collection amounts totaling over $ 20,000. The Chair noted that Complainant had received $ 175,000 during 2013 from an insurance policy following the death of her husband. Complainant stated that the money was not used to pay off her $ 20,000 in overdue debts and collection accounts. Complainant did not provide any documentation that she had contacted her creditors or that she had taken steps to resolve her debts. Complainant also stated that since she had moved, the creditors no longer contacted her and she did not contact the creditors. The Chair did not see any realistic plan on Complainant's part to repay her overdue debts, raising questions about Complainant's level of character. When Complainant requested reconsideration for the determination, the request was denied on June 17, 2015, noting that Complainant's debts had increased to over $ 24,000. The Chair noted that on June 2, 2015, Complainant provided documentation indicating that she was diagnosed with "Bipolar Disorder." The Chair averred that she did not consider Complainant's medical condition. Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its action.
We turn to Complainant to establish that the Agency's reasons were pretext. Complainant argued that a coworker was permitted to reduce her indebtedness. However, Complainant did not provide any specific information about this alleged coworker. Therefore, we find that Complainant has not provided any evidence to support her assertion that she was treated differently because of her medical condition.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 17, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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